STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN EVANS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-6352

) THE SCHOOL BOARD OF BROWARD ) COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on December 6, 7, and 8, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Leslie Holland, Staff Attorney

FEA/United

208 West Pensacola Street Tallahassee, Florida 32399-1700

For Respondent: Edward J. Marko, Esquire

Victoria Park Centre, Ste. 201 1401 East Broward Boulevard Post Office Box 4369

Fort Lauderdale, Florida 33338 STATEMENT OF THE ISSUES

The ultimate issues for determination at the formal hearing were whether Petitioner abandoned his position as a Junior ROTC instructor or whether Petitioner was improperly suspended or terminated. Ancillary issues were raised by Petitioner and made a part of this proceeding pursuant to the Petition for Administrative Hearing, the Amended Petition for Administrative Hearing, and the Order Denying Motions In Limine and For Attorney's Fees entered on October 10, 1989. 1/

PRELIMINARY STATEMENT

Petitioner filed a Petition for Administrative Hearing with Respondent on December 15, 1988. The matter was referred to the Division of Administrative Hearings on December 20, 1988, for assignment of a hearing officer, and assigned to former Hearing Officer Tremor on December 27, 1988. The matter was then transferred to the undersigned on March 31, 1989, and scheduled for formal hearing on December 6-8, ,1989, pursuant to a Notice of Hearing issued on October 13, 1989.

At the formal hearing Petitioner testified in his own behalf, presented the testimony of 12 other witnesses, and offered 22 exhibits for admission in evidence. Petitioner's Exhibits 1-3, 7-10, and 16 were admitted in evidence without objection. Petitioner's Exhibits 15, 17, and 18 were admitted in evidence over objection. Ruling on Petitioner's Exhibits 4-6, 11-14, and 19-22 was reserved for disposition in this Recommended Order.

Respondent presented the testimony of five witnesses and offered 10 exhibits for admission in evidence. Respondent's Exhibits 1-9 were admitted in evidence without objection. Ruling on Respondent's Exhibit 10 was reserved for disposition in this Recommended Order.

A transcript of the formal hearing was ordered and filed with the undersigned on February 16, 1990. Petitioner and Respondent timely filed their proposed findings of tact and conclusions of law on April 10, 1990. The parties' proposed findings of facts are addressed in the Appendix to this Recommended Order.

A copy of the Collective Bargaining Agreement between Respondent and the Broward Teachers Union for August 16, 1986, through August 15, 1989, was requested telephonically by the undersigned sua sponte on or about July 25, 1990, and provided by counsel for Petitioner the same day it was requested.

Counsel for both parties were telephonically advised by the undersigned that the request had been made and that a review of the Collective Bargaining Agreement was necessary for the undersigned to resolve some of the issues presented in this proceeding. A copy of the Collective Bargaining Agreement was entered in evidence on or about July 25, 1996.

The resolution of the issues in this proceeding has required the undersigned to consider the jurisdictional limits of federal and state certifications held by Petitioner and to evaluate the credibility of witnesses and conflicting testimony received in evidence. One method used to make such an evaluation was to determine which testimony was most consistent with the facts and circumstances surrounding the alleged abandonment or termination. A number of findings of fact have been made in this Recommended Order that otherwise may not have been necessary if the jurisdictional limits of Petitioner's dual certifications the credibility of witnesses, or a conflict in testimony had not been at issue.

FINDINGS OF FACT

1. Petitioner was employed by Respondent as an annual contract employee for approximately three years. Petitioner's third annual contract with Respondent was for an initial term of August 27, 1987, through June 19, 1987. The initial term of employment was extended until June 30, 1987. Petitioner has been paid all sums due for employment services rendered through June 30, 1987.

   
   

   State and Federal Certifications

   
   

2. At all times material to this proceeding, Petitioner possessed a State of Florida Department of Education Teacher's Certificate ("Teaching Certificate"). The Teaching Certificate, in accordance with Section 231.17, Florida Statutes, 2/ authorized Petitioner to teach "JR ROTC" at the secondary level from July 1, 1985, through June 30, 1990. During his three year employment with Respondent, Petitioner served as an Assistant Aerospace Science Instructor ("AASI") for the United States Air Force Junior Reserve Officer Training Corps ("AFJROTC") program established at Northeast High School.

3. Petitioner was required to be certified by the Air Force to instruct AFJROTC before he could obtain his Teaching Certificate from the Florida Department of Education. The Air Force certification requirement is separate and distinct from the Florida certification requirement.

   
   

4. A member of Respondent's instructional staff who has a Teaching Certificate for "JR ROTC", who is decertified by the Air Force, and who is no longer eligible to teach "JR ROTC" may be assigned by the Respondent to a field other than "JR ROTC" pursuant to the authority granted to Respondent in Sections 231.095, 231.096, 231.141, 231.15, and 231.251, Florida Statutes. 3/ At all times material to this proceeding, Petitioner had a Teaching Certificate and was "properly certificated" within the meaning of Section 231.36(1)(a), Florida Statutes.

   
   

   The Air Force and the Respondent

   
   

5. Northeast High School agreed with the Air Force to provide a program of instruction, to maintain standards prescribed by the Air Force, to employ instructors approved by the Air Force, and to ensure that the total work was divided as outlined in AFROTC Regulation 30-1. AFROTC Regulation 30-1, Section A, Part 2.b. The principal was designated in AFROTC Regulation 30-1 as the ROTC program director at Northeast High School. AFROTC Regulation 30-1, Section C, Part 12.

   
   

6. The principal at Northeast High School evaluates the Aerospace Science Instructor ("ASI"). AFROTC Regulation 30-1, Section C, Part 12. The ASI is the senior instructor in any AFJROTC program. AFROTC Regulation 30-1, Section A, Part 1.c. The ASI evaluates an AASI for purposes of the AFJROTC evaluation. AFROTC Regulation 30-1, Section C, Part 16.b.(2). In addition, the principal is required to either endorse or not endorse the Evaluation Report ("ER") of an AASI rendered by the ASI for purposes of the AFJROTC program.

   
   

7. An appeal of either an unsatisfactory ER rendered by an ASI or an endorsement of such an ER by the principal at Northeast High School is required to be made to the school superintendent in accordance-with AFROTC Regulation 30- 1, Section C, Part 16.f. The Air Force has no control over either the manner in which an ER is rendered by an ASI or the conduct of an appeal hearing by school officials. Neither the ER nor the appeal hearing becomes an Air Force matter until the decision of the superintendent is appealed. 4/

   
   

8. The superintendent's decision regarding the appeal of an unsatisfactory ER of an AASI rendered for proposed of the AFJROTC program at Northeast High School may be appealed by the AASI to the AFROTC Director of Operations, Maxwell AFB, Alabama 36112-6663. AFROTC Regulation 30-1, Section C, Part 16.f. If an unsatisfactory rating is appealed and is not raised to satisfactory, an inquiry officer is appointed by the AFROTC Commandant or Vice Commandant to determine if continued Air Force certification is warranted. AFROTC Regulation 30-1 Section C, Part 16.f. If the inquiry substantiates the unsatisfactory ER, the Air Force Commandant or Vice Commandant notifies the AASI of his or her decertification and ineligibility for employment as an AFJROTC instructor.

   
   

9. Action taken by Respondent, through either the principal at Northeast High School or a representative of the superintendent, in the form of either an endorsement of an unsatisfactory ER rendered by an ASI for purposes of the AFJROTC program or the appellate review of such an endorsement, may result in decertification by the Air Force of an AASI and his or her ineligibility for

   employment as an AFJROTC instructor. AFROTC Regulation 30-1, Section C, Parts

   12 and 16.f. Air Force decertification alone has no effect on the Teaching Certificate of a member of Respondent's instructional staff who has a Teaching Certificate in the subject area of "JR ROTC." Similarly, Air Force decertification alone has no effect on the status of an AASI as Respondent's employee.

   
   

   The State and the Respondent

   
   

10. A member of Respondent's instructional staff who is an AASI receives a separate evaluation from the principal at Northeast High School in the AASI's separate capacity as a member of Respondent's state certified instructional staff. The evaluation rendered by the principal of Northeast High School is Respondent's official evaluation of an AASI for purposes of the AASI's employment by Respondent. 5/

    
    

11. Respondent may properly suspend or terminate a member of Respondent's instructional staff who is an AASI for "just cause", within the meaning Subsection 231.36(1)(a), Florida Statutes, 6/ after the AASI is provided with the requisite statutory due process prescribed in Subsection 231.36(6)(a). An AASI, therefore, who is suspended or terminated by Respondent for either an unsatisfactory official evaluation or decertification by the Air Force is entitled to written notice of the charges against him or her and a hearing conducted in accordance with Chapter 120, Florida Statutes. 7/ The, purpose of such a hearing is to determine whether the AASI's suspension or termination was for just cause.

    
    

    The Air Force and the Petitioner

    
    

12. Prior to his employment with Respondent, Petitioner was employed as an AFJROTC instructor for four years and seven months at the Milwaukee Trade and Technical High School in Milwaukee, Wisconsin. Prior to that, Petitioner had 20 years military experience during which time Petitioner was a jet aircraft mechanic, a crew chief, a flight chief, and a trainer-supervisor. Petitioner was responsible for squadron training, classroom instruction, assuring that all enlisted members of his squadron were able to perform their jobs properly, and written testing for promotion eligibility. Finally, Petitioner has an Associate Arts degree and additional college credits from the Upper Iowa University.

    
    

13. The AFJROTC program at Northeast High School received the Air Force honor of "Meritorious Unit" for each of the first two years Petitioner was employed as an AFJROTC instructor at Northeast High School. Meritorious Unit is the second highest honor an AFJROTC program can receive. During the third year of Petitioner's employment as an AFJROTC instructor, in April, 1987, the AFJROTC program at Northeast High School received the Air Force honor of "Honor Unit." Honor Unit is the highest honor an AFJROTC program can receive. It is awarded to only 20 percent of the AFJROTC programs annually, and is difficult to obtain.

    
    

14. The AFJROTC program at Northeast High School won Honor Unit on the basis of an inspection conducted in February, 1987, by Daniel D. Eddy, Captain, United States Air Force. Captain Eddy received a masters degree in personnel management from Central Michigan University. Captain Eddy was the area manager for Junior ROTC units in central and south Florida at the time he conducted the inspection of the AFJROTC program at Northeast High School.

    
    

15. The inspection conducted by Captain Eddy in February, 1987, evaluated over 26 criteria for the AFJROTC program at Northeast High School including:

    leadership, overall appearance of the AFJROTC unit, unit supply, inventory control, security of supplies, cadet attitudes, and the structure of the cadet corps itself. 8/ During his inspection, Captain Eddy noted that Petitioner had done an outstanding job in Petitioner's area of responsibility - management of supply uniform inventory and second year cadet drill sequences. Captain Eddy concluded that Petitioner's performance of his responsibilities contributed to the receipt of Honor Unit by the AFJROTC program at Northeast High School.

    
    

16. Petitioner received separate evaluations from his ASI and from Respondent during the first two years of his employment as an AFJROTC instructor at Northeast High School. The Air Force ERs were rendered by Colonel Richard Rung, the ASI in the AFJROTC program at Northeast High School and Petitioner's supervisor for purposes of the AFJROTC program. Respondent's evaluations of Petitioner were rendered by Mr. Robert Schmelz, Principal, Northeast High School. All of Petitioner's evaluations during the first two years of his employment at Northeast High School were satisfactory overall. Colonel Rung did not rate Petitioner below an excellent in any individual performance rating. 9/ Respondent's official evaluations of Petitioner considered various performance criteria including Petitioner's competence, attitude, and conduct.

    
    

    Petitioner's First Unsatisfactory ER

    
    

17. During Petitioner's third annual contract year with Respondent, Petitioner received aid unsatisfactory ER from Colonel Rung on May 1, 1987. Colonel Rung rated Petitioner poor in planning and evaluation, supply, aerospace science, leadership education, supervisory/employee relations, attitude, integrity, and cooperation. Colonel Rung's written remarks in the unsatisfactory ER stated that Petitioner failed to comply with the Colonel's directives and listed approximately 12 examples of Petitioner's alleged failure to follow directives. 10/

    
    

18. Petitioner did not concur in the unsatisfactory ER rendered by Colonel Rung. Instead, he denied the accuracy of both the "poor" ratings and Colonel Rung's written remarks. Petitioner submitted a written rebuttal to the unsatisfactory ER from Colonel Rung.

    
    

19. Mr. Schmelz was not personally aware of any deficiencies in Petitioner's job performance and initially refused to concur in Petitioner's unsatisfactory ER. 11/ When Mr. Schmelz concurred in the unsatisfactory ER rendered by Colonel Rung, Mr. Schmelz relied on notes and representations provided to him by Colonel Rung pertaining to the alleged deficiencies contained in the ER. The official evaluations by Respondent were the satisfactory evaluations rendered by Mr. Schmelz. 12/

    
    

20. Frank Berry, the Assistant Principal of Northeast High School at the time, was responsible in relevant part for maintaining the inventory of school equipment and supervision of the north campus at Northeast High School. Mr. Berry performed an inventory of AFJROTC uniforms toward the end of the 1986-1987 school year and found no discrepancy. The supply room was clean. Petitioner always completed paperwork for Mr. Berry in a timely manner including permission forms for trips, requests for field trips, and cut slips. Petitioner was allowed to leave the school premises during planning periods by arrangement through the front office of the school.

    
    

21. Lieutenant Colonel Timothy Tschetter, the other AASI that worked with Petitioner at Northeast High School, disagreed with the unsatisfactory ER rendered by Colonel Rung with respect to Petitioner. Colonel Tschetter worked

    very closely with Petitioner in the AFJROTC program at Northeast High School. Colonel Tschetter found that Petitioner's performance was outstanding and that Petitioner was not the kind of noncommissioned officer with whom Officers had trouble. Colonel Rung's evaluation of Petitioner was totally out of character for Petitioner.

    
    

22. Colonel Rung attributed the alleged changes in Petitioner's performance to Petitioner's dissatisfaction over pay cuts imposed on all AFJROTC personnel. Petitioner was dissatisfied with those pay cuts and stated on several occasions that he could not afford to work as an AFJROTC instructor if that was all that he could earn. After the pay cut, however, no lack of excellence in Petitioner's performance was observed by Colonel Tschetter. Petitioner was always there for the cadets, and everything Petitioner did was as good or better than Petitioner had done before the pay cuts.

    
    

23. There was no decline in Petitioner's performance in: testing and evaluation of students in leadership and drill classes; security procedures and cleanliness in the supply room; issue and retrieval of uniforms; safety procedures involving drill inspections on hard surfaces during hot weather; failure to prepare cadet personnel records; and: refusal to update the Air Force regulation manuals. It was difficult for Colonel Tschetter to grasp what Colonel Rung saw in Petitioner's performance that caused Colonel Rung to rate Petitioner unsatisfactorily.

    
    

24. Colonel Rung had a managerial style that criticized rather than praised or corrected. Colonel Rung, Colonel Tschetter, and Petitioner were civilian employees of who were retired from the Air Force. Colonel Rung treated Colonel Tschetter and Petitioner as Air Force personnel rather than civilian employees. On one occasion, after a difficult day on the drill field, Colonel rung criticized Petitioner. Petitioner responded that if Colonel Rung worked as hard as Petitioner did, then Colonel Rung would have room to criticize. After that incidents Petitioner fell from grace with Colonel Rung. Nothing Petitioner did could satisfy Colonel Rung.

    
    

25. Colonel Rung showed Petitioner's unsatisfactory ER to Colonel Tschetter before it was given to Petitioner. Colonel Rung told Colonel Tschetter that the only way Petitioner could avoid the unsatisfactory ER would be to resign and work elsewhere.

    
    

26. While Colonel Rung was writing Colonel Tschetter's ER, Colonel Rung interrogated Colonel Tschetter regarding Petitioner's unsatisfactory ER. When Colonel Tschetter refused to support the findings in Colonel Rung's unsatisfactory ER, Colonel Rung became angry. Colonel Rung threw an unsatisfactory ER of Colonel Tschetter at Colonel Tschetter and told Colonel Tschetter that the only way the unsatisfactory ER could be avoided was for Colonel Tschetter to resign and work elsewhere.

    
    

27. During the first six weeks of the 1987-1988 school year, Colonel Rung did not renew the officer rank of 10-15 cadets who were cadet major, cadet captain, or cadet lieutenant during the 1986-1987 school year. 13/ These cadets, in Colonel Rung's opinion, did not perform adequately. They did not support Colonel Rung and did not support the new cadet leaders who supported Colonel Rung. Instead, these 10-15 cadets belonged to the faction of cadets that supported Petitioner. Colonel Rung felt that these 10-15 cadets had been manipulated by Petitioner. 14/

    Petitioner's Second Unsatisfactory ER

    
    

28. When Petitioner rebutted his unsatisfactory ER dated May 1, 1987, Colonel Rung prepared a second unsatisfactory ER dated May 14, 1987. The second unsatisfactory ER was slightly more favorable than the first unsatisfactory ER. The second unsatisfactory ER rated Petitioner as "poor" in only four categories rather than the six categories in which petitioner was rated "poor" in the first unsatisfactory ER. The "poor" ratings in "planning and evaluation" and "leadership education" in the first ER had been upgraded to "average" in the second ER. Colonel Rung contested the factual representations contained in Petitioner's rebuttal and added to the second ER an allegation that Petitioner had misrepresented facts in an official statement. Mr. Schmelz also concurred in Colonel Rung's second unsatisfactory ER of Petitioner based on information provided to Mr. Schmelz by Colonel Rung.

    
    

    Appeal to the School Superintendent,

    
    

29. Petitioner appealed his two unsatisfactory ERs to the Superintendent of Schools in accordance with AFROTC Regulation 30-1, Section C, Part 16.f. Petitioner's appeal hearing was conducted by Mr. Thornton G. Humphries and Mr. Damian Huttenhoff on June 15, 1987. At the time of the hearing, Mr. Humphries was the Director of Secondary Education for the northeast area of Broward County, and Mr. Huttenhoff was the Director of Employee Relations for Respondent. The Superintendent of Schools was not present at the appeal hearing.

    
    

30. The appeal hearing was not conducted in accordance with Chapter 120, Florida Statutes, within the meaning of Subsections 231.36(6)(a) and 231.36(3)(e)4.a. 15/ Petitioner was given approximately 15 minutes to present his case at the appeal hearing. 16/ Petitioner was prevented from discussing the substance of the information in the written materials that he had submitted to Mr. Humphries and Mr. Huttenhoff, and was prevented from calling witnesses in his own behalf including the witnesses Petitioner had listed in his written materials. 17/ Mr. Humphries concluded that Petitioner was Air Force personnel and Air Force regulations did not require Mr. Humphries to call Petitioner's witnesses.

    
    

31. Mr. Humphries and Mr. Huttenhoff voided the second, more favorable, unsatisfactory ER and made no change in the first unsatisfactory ER. Petitioner received written notice of the decision in the appeal hearing by letter dated June 23, 1987, and signed by Mr. Humphries.

    
    

32. The decision in the appeal hearing was further clarified in a letter to the Air Force dated July 2, 1987, and signed by Mr. Huttenhoff. The letter attached "Official School Board" evaluations of both Colonel Tschetter and Petitioner. These evaluations reflected a level of satisfactory performance for both individuals. The letter stated:

    
    

    It is the District's position that the appeal of the Air Force evaluations is an internal Air Force matter. The School Board declares its intent to be neutral in this dispute. To that extent, the signature of Mr. Schmelz on the Air Force evaluation forms should not be used as verification of Colonel Rungs' concerns. The official

    evaluation of Sergeant Evans and Lieutenant Colonel Tschetter is the attached School Board employee evaluation.

    
    

    Appeal to the Air Force

    
    

33. Petitioner appealed the decision of Mr. Humphries and Mr. Huttenhoff to the AFROTC Director of Operations at Maxwell AFB in Alabama in accordance with AFROTC Regulation 30-1, Section C, Part 16.f. An inquiry Officer was assigned to investigate Petitioner's appeal. The inquiry officer questioned neither the cadets that supported Petitioner nor their parents, including those who were listed by Petitioner as witnesses who could substantiate Petitioner's rebuttal of the unsatisfactory ERs rendered by Colonel Rung.

    
    

34. The AFROTC Evaluation Report Appeal Board concluded on July 13, 1987, that Petitioner performed most of his primary duties in an "average" to "excellent" manner. The Board recommended that Petitioner's "poor" rating in "planning and evaluation", "supply", and "aerospace science" be upgraded to "average." The Board concluded, however, that Petitioner's frustration over salary reductions had affected his attitude and performance in a negative manner. The Board sustained Petitioner's "poor" ratings in "leadership education", "supervisory employee relations", and "attitude, integrity, and cooperation." 18/ The Board concluded that Petitioner's overall rating should remain "unsatisfactory", but recommended that Petitioner be placed on a "probationary" period. The Board further recommended that and on-site evaluation of the internal problems in the AFJROTC program at Northeast High School be conducted by AFROTC as soon as possible.

    
    

35. The Vice Commandant at Maxwell AFB decertified Petitioner by letter dated August 20, 1987. 19/ By separate letter also dated August 20, 1987, Mr. Schmelz was notified of Petitioner's decertification. Contrary to the recommendation of the Board, Petitioner was not placed on a probationary period. No evidence was presented that an investigation of the internal problems in the AFJROTC program was ever conducted. Colonel Tschetter was not decertified by the Air Force as a result of his unsatisfactory ER by Colonel Rung. Colonel Tschetter returned to work at Northeast High School for the 1987-1988 school year and was a member of the "board" that did not renew the officer rank of cadets who had held similar ranks the previous school year but who supported Petitioner in his dispute with Colonel Rung. 20/

    
    

    Contractual Right to Continued Employment

    
    

36. Petitioner was employed by Respondent as a vocational teacher. Vocational teachers and other teachers who qualify for certificates on the basis of non-academic preparation are entitled to all of the contractual rights and privileges granted to other instructional personnel holding equivalent certificates. Subsection 231.361(1), Florida Statutes. Petitioner was a member of Respondent's instructional staff within the meaning of Subsection 228.041(9).

37. The Collective Bargaining Agreement in effect between the Broward Teachers Union and Respondent from August 16, 1986, to August 15, 1989 ("CBA") 21/ applied to Petitioner's annual contract with Respondent for the 1986-87 school year. Article 2, Paragraph A of the CBA. Article 18, Paragraph O of the CBA specifies:

    
    

    All annual contract employees whose contracts are not being renewed shall receive written notice of same no later than May 15th. Any such employee not given such notice by May 30th shall be reemployed for the following school year. (emphasis added)

    
    

38. Thomas P. Johnson, PhD., was the Associate Superintendent of Human Resources for Respondent until 1989. Dr. Johnson stated that Petitioner's personnel records contained no indication that Petitioner was recommended in the Fall of 1986 or the Spring of 1987 for reappointment in the 1987-1988 school year. In the absence of such a recommendation for reappointment, Dr. Johnson erroneously concluded that Petitioner's contractual right to continued employment with Respondent expired on June 30, 1987 and, thereafter, Petitioner had no status with Respondent. 22/

    
    

39. Dr. Johnson's conclusion erroneously applied the requirement for a recommendation of reappointment in Subsection 231.36(3)(a), Florida Statutes, to Petitioner's annual contract. The statutory requirement for a recommendation of applies only to professional service contracts and does not apply to annual contracts. Petitioner had a contractual right to an annual contract for the 1987-1988 school year. The annual contract Petitioner signed with Respondent for the 1986-1987 school year expressly provided that it was amended to comply with the CBA. In the absence of timely written notice that Petitioner would not be re-employed for the 1987-1988 school year, both the CBA, and Petitioner's annual contract mandated Petitioner's re-employment for the 1987-1988 school year. If Respondent did not wish to reappoint Petitioner for the 1987-1938 school year, Respondent was contractually required to give Petitioner written notice of Respondent's decision by May 30, 1987. Otherwise, Petitioner had a contractual right to continued employment for the 1987-1988 school year.

    
    

40. The unsatisfactory ERs rendered by Colonel Rung for purposes of the AFJROTC program on May 1 and May 14, 1987, did not suffice as written notice that Petitioner's contract with Respondent was not being renewed. The official evaluations of Petitioner in his capacity as a civilian employee of the Respondent were those rendered by Respondent. Respondent's official evaluations of Petitioner rated Petitioner's performance as satisfactory. Petitioner did note receive written notice of the decision in his appeal hearing until June 23, 1987, or later.

    
    

41. Although Mr. Schmelz signed the unsatisfactory ER rendered by Colonel Rung, Mr. Schmelz had no knowledge of Colonel Rung's allegations other than information provided by Colonel Rung. Respondent stated in writing on July 2, 1987, that its official record was the "Official School Board" evaluations of satisfactory performance. Respondent further stated that it was neutral in Petitioner's dispute with Colonel Rung which Respondent considered to be an internal Air Force matter.

    
    

42. Petitioner had a reasonable expectation of employment for the 1987- 1988 school year and a contractual right to such continued employment.

    Respondent failed to give Petitioner written notice by May 30, 1987, that Petitioner's annual contract was not being renewed for the 1987-88 school year.

    
    

    No Abandonment

    
    

43. Petitioner did not abandon his employment with Respondent. Mr. Schmelz instructed Petitioner on June 30, 1987, not to return to work until the Air Force matter was resolved. 23/ Respondent never provided Petitioner with written notice that Petitioner had been separated from his position with Respondent under conditions of abandonment. 24/ Instead, Mr. Schmelz hired a Sergeant Clark to replace Petitioner.

    
    

44. Sergeant Clark was assigned to the AFJROTC program at Dillard High School in Broward County, Florida. Mr. Schmelz had used Sergeant Clark over the summer to teach the leadership part of the AFJROTC program at Northeast High School. Mr. Schmelz got in touch with the principal at Dillard High School, arranged a transfer, and notified the Air Force. 25/ The other two positions in the AFJROTC program act Northeast High School for the 1987-1988 school year were filled by Colonel Rung and Colonel Tschetter. Petitioner could not abandon a position by failing to report for a position that Respondent had filled by hiring Sergeant Clark. The actions of Respondent were sufficient to rebut the presumption that Petitioner abandoned his employment with Respondent.

    
    

45. Statements by Petitioner during the 1986-1987 school year that he was not returning the next year because of the salary reduction for AFJROTC instructors were net an expression of Petitioner's intent. Petitioner's statements were belied by Petitioner's actions.

    
    

46. Petitioner indicated on his Air Force preference card due on February 13, 1987, that he wished to remain in his position as an AFJROTC instructor. 26/ Petitioner obtained a part time job teaching real estate seminars on weekends to supplement his income for the salary reduction he suffered as an AFJROTC instructor. 27/ When asked by Colonel Rung to resign, Petitioner refused and unequivocally expressed his intent to preserve his option to return for the

    1987-1988 school year. Petitioner told Mr. Schmelz in May, 1987, that Petitioner did not wish to leave at the end of the 1986-1987 school year and was being pressured by Colonel Rung to resign. 28/

    
    

47. Petitioner sought reinstatement to his position as an AFROTC instructor through every means available to him. Although some of the means were misdirected, 29/ they were undertaken in Petitioner's mind for the same purpose; reinstatement. 30/ Petitioner joined the Broward Teachers Union, filed a grievance, and appealed his decertification to the Air Force. Petitioner offered to accept the recommendation of probation from the Air Force if he was reinstated. Petitioner filed an ethics complaint against Colonel Rung, to no avail, sought help Congressionally, and applied for recertification by the Air Force. The means undertaken by Petitioner to be reinstated to his former position may have been misdirected, but they were not the actions of one who has abandoned his position.

    
    

48. The actions of Respondent made it unnecessary for Petitioner to show up for work. Respondent filed Petitioner's position by hiring Sergeant Clark and by giving Sergeant Clark a written contract which Petitioner had the right to receive pursuant to the CBA. 31/ Respondents acted in a manner that was consistent with its assumption that decertification by the Air Force had the effect of terminating Petitioner from his employment with Respondent without further action by Respondent. 32/ A constructive abandonment that is deemed by

    the Respondent, but neither intended nor reasonably expected by the Petitioner, has the indicia of a termination. 33/

    
    

    Suspension or Termination

    
    

49. Petitioner was either suspended or terminated by Respondent on June 30, 1987. It is unnecessary to distinguish between suspension and termination because either was an improper dismissal of Petitioner under the facts in this proceeding. The facts and circumstances that preceded and followed the events of June 30, 1987, however, are more consistent with a finding that Petitioner was terminated by Respondent.

    
    

50. Petitioner was instructed by Mr. Schmelz on June 30, 1987, not to return to his job until the Air Force matter was resolved. While Mr. Schmelz denied that he instructed Petitioner not to return to Northeast High School until the Air Force matter was resolved, 34/ his denial conflicts with other testimony received in evidence and is inconsistent with the facts and circumstances that preceded and followed June 30, 1987.

    
    

51. The denial by Mr. Schmelz conflicts with the testimony of Petitioner and Colonel Tschetter. Petitioner and Colonel Tschetter stated in separate testimony that Mr. Schmelz instructed them not to return to work until the Air Farce matter was resolved. Whatever words were actually used by Mr. Schmelz, both Petitioner and Colonel Tschetter were left with the unequivocal understanding that they were not to return to their jobs until the Air Force matter was resolved. There was no doubt in the mind of either AFJROTC instructor concerning the substance of the instructions from Mr. Schmelz.

    
    

52. The denial by Mr. Schmelz is inconsistent with the his own actions.

    
    

    1. When the Air Force did not decertify Colonel Tschetter, Mr. Schmelz reinstated Colonel Tschetter for the 1987-1988 school year. When the Air Force decertified Petitioner, Mr. Schmelz hired Sergeant Clark to replace Petitioner.

       
       

    2. Mr. Schmelz used Sergeant Clark during the summer to teach the leadership class in the AFJROTC program at Northeast High School. Mr. Schmelz used Sergeant Clark at a time when Mr. Schmelz knew that there were too few students at Northeast High School during the 1986-1987 school year to justify the continued employment of three AFJROTC instructors; much less four AFJROTC instructors.

       
       

    3. After Mr. Schmelz was notified by the Air Force on August 20, 1987, that Petitioner was to be decertified on August 28, 1987, Mr. Schmelz neither contacted Petitioner to determine if Petitioner intended to return for the 1987- 1988 school year nor contacted Petitioner to instruct him not to return for the 1987-1988 school year. Instead, Mr. Schmelz conducted one interview and hired Sergeant Clark to replace Petitioner for the 1987-1988 school year. 35/

       
       

    4. Colonel Rung, Colonel Tschetter, and Sergeant Clark were assigned to the AFJROTC program at Northeast High School at the beginning of the 1987-1988 school year. They comprised the members of the "board" that decided not to renew the ranks of those cadets who had supported Petitioner rather than Colonel Rung. 36/ Colonel Tschetter was subsequently assigned to another school as an adjunct instructor.

    
    

53. The denial by Mr. Schmelz is inconsistent with the procedures followed by Colonel Rung in rendering the unsatisfactory ERs concerning Petitioner.

    Colonel Rung's Air Force supervisors and Mr. Schmelz knew of and condoned the procedures used by Colonel Rung. 37/

    
    

    1. There were too few students at Northeast High School during the 1986- 1987 school year to justify the continued employment of three AFJROTC instructors. 38/ The need to staff down for the 1987-1988 school year was evidenced by enrollment figures in October, 1986, and May, 1987. 39/ Article 26 of the CBA prescribes the procedures to be followed by Respondent for the reduction of personnel.

       
       

    2. Colonel Rung thought it would not be necessary to staff down because he thought the problem would automatically be resolved by Petitioner's unsatisfactory ER. 40/ Colonel Rung wrote a letter of resignation for Petitioner's signature on or about March 23, 1987. 41/ The letter of resignation was effective at the end of June, 1987.

       
       

    3. Petitioner refused to sign the letter of resignation and expressed his desire to stay at Northeast High School. Colonel Rung told Petitioner that Petitioner did not have the option of staying because Colonel Rung would write an unsatisfactory ER for Petitioner if Petitioner did not resign. Colonel Rung showed Petitioner the unsatisfactory ER on April 27, 1987, and again asked Petitioner to resign in order to avoid the unpleasantness of an unsatisfactory ER. Colonel Rung offered to make Petitioner's termination report a satisfactory one but Petitioner refused to resign.

       
       

    4. Colonel Rung stated in his second unsatisfactory ER of Petitioner that his procedures were known to and condoned by his Air Force supervisors and Mr. Schmelz. Mr. Schmelz concurred in Colonel Rung's second unsatisfactory ER of Petitioner.

    
    

54. The substance of the separate steps undertaken by Respondent, when considered as a whole, demonstrate Respondent's suspension or termination of Petitioner irrespective of the form in which each separate step was cast and irrespective of the denial by Mr. Schmelz concerning the events of June 30, 1987. 42/ Respondent erroneously assumed that Petitioner's decertification by the Air Force had the effect of terminating Petitioner from his employment with Respondent without further action by Respondent. Furthermore, Respondent's actions or inaction, contributed to Petitioner's decertification by the Air Force.

    
    

    1. Respondent's position at the formal hearing was that Petitioner's Teaching Certificate was a vocational certificate which entitled Petitioner to teach only "JR ROTC." Respondent erroneously determined that Subsection 231.361(2), Florida Statutes, precluded petitioner from teaching in any "regular" K-12 program. 43/ Once the Air Force decertified Petitioner, Dr. Johnson erroneously concluded that no further action was required by Respondent. 44/

       
       

    2. Mr. Humphries stated that Petitioner would not have a job with Respondent if Petitioner was not certified by the Air Force. Mr. Humphries was the Central Area superintendent at the time of his testimony at the formal hearing. The Central Area Superintendent is the managing agent for the school system in that area. 45/ Mr. Humphries was of the opinion that the disposition of the dispute between, Petitioner and Colonel Rung by the Air Force would be dispositive of the question of whether Petitioner would be re-employed by Respondent for the 1987-1988 school year.

    3. Mr. Schmelz concurred in the unsatisfactory ERs rendered by Colonel Rung without any first-hand knowledge of the allegations in the unsatisfactory ERs. Mr. Humphries and Mr. Huttenhoff failed to conduct Petitioner's appeal hearing in accordance with the provisions of Subsections 231.36(3)(e)4.a. and 120.57(1)(a), Florida Statutes. Mr. Humphries prevented Petitioner from calling witnesses in Petitioner's own behalf and prevented Petitioner from discussing any matter in the written materials Petitioner submitted at the appeal hearing. Mr. Humphries and Mr. Huttenhoff voided the second unsatisfactory ER that was more favorable to Petitioner on the ground that Colonel Rung was without authority to render the second unsatisfactory ER.

       
       

    4. Colonel Rung believed that the problems associated with having to staff down for the 1987-1988 school year would be solved by Petitioner's unsatisfactory ER. The procedures used by Colonel Rung in his unsatisfactory ERs of Petitioner were known to and condoned by Mr. Schmelz.

       
       

    5. Mr. Schmelz employed Sergeant Clark during the summer of 1987 at a time when Mr. Schmelz knew of the need to staff down for 1987-1988 school year. Sergeant Clark was not an existing member of Respondent's instructional staff. After Mr. Schmelz was notified by the Air Force of Petitioner's decertification, Mr. Schmelz hired Sergeant Clark to replace Petitioner in the AFJROTC program at Northeast High School.

       
       

    6. The recommendation to reappoint Petitioner for the 1987-1988 school year typically would have been made by Respondent in the fall of 1986 or the spring of 1987. There was no indication in Petitioner's personnel file that Petitioner was recommended for reappointment for the 1987-1988 school year. However, Respondent neither provided, Petitioner with timely notice that he would not be reappointed for the 1987-1988 school year nor entered into an annual contract with Petitioner. Instead, Respondent filled Petitioner's previous position by hiring Sergeant Clark and gave Sergeant Clark a written contract which Petitioner had the right to receive pursuant to the CBA.

    
    

55. When Petitioner was suspended or terminated by Respondent, Petitioner was a member of the Northeast High School instructional staff, within the meaning of Subsection 231.36(6)(a), and possessed a contractual right to continued employment with Respondent pursuant to his annual contract for the 1986-1987 school year and the CBA. Respondent made no finding that Petitioner had been suspended or terminated for "just cause" within the meaning of Subsections 231.36(1)(a) and 231.36(6)(a), Florida Statutes. Respondent provided Petitioner with neither the written notice of charges against him nor a hearing conducted in accordance with Chapter 120, Florida Statutes, as required by Subsection 231.36(6)(a).

    
    

    Remedies

    
    

56. Article 33, Paragraph A of the CBA provides:

    
    

    Any claim by an employee(s) .. that there has been a violation... of any provision of this Agreement may be processed as a grievance as hereinafter provided... (emphasis added)

    
    

    If an employee elects to seek redress of a grievance through the arbitration procedure prescribed in the CBA, Article 33 of the CBA, Paragraph D, provides in relevant part:

    ... Both parties agree that the award of the arbitrator shall be final and binding.... [and] ... The disposition of the Board shall be final and binding and shall not be subject to court or administrative review.

    
    

57. Petitioner signed a grievance complaint with the Broward Teachers Union during the summer of 1987 challenging his unsatisfactory ER from Colonel Rung. 46/ Petitioner did not elect to utilize the arbitration procedure prescribed in Article 33 of the CBA to challenge the failure of Respondent to perform acts required by the CBA. Instead, Petitioner requested a formal hearing conducted in accordance with Chapter 120, Florida Statutes, pursuant to Subsection 231.36(6)(a), to challenge the failure of Respondent to perform acts required by Subsection 231.36(1) and 231.36(6)(a).

    
    

    Back Pay

    
    

58. Petitioner earned $23,819.09 annually as Respondent's employee during the initial term of his annual contract for the 1986-1987 school year. In addition, Petitioner received $10,000.00 annually in Air Force retirement pay. 47/

    
    

59. Petitioner worked for approximately nine months subsequent to his termination by Respondent on June 30, 1987. During those nine months of employment, Petitioner earned $80.00 a week or approximately $2,880.00. 48/ Approximately $1,920.00 of the $2,880.00 was earned in 1987 and $960.00 of the

    $2,880.00 was earned in 1988. Petitioner earned an additional $2,040.00 in 1988 over and above his retirement pay. 49/

    
    

60. Petitioner was contractually entitled to be compensated by Respondent for the 1987-1988 school year in accordance with Article 18, Paragraph O of the CBA, in the amount of $23,819.09. 50/ Petitioner actually earned $4,920.00 during the 1987-1988 school year. The difference between the amount Petitioner was contractually entitled to earn for the 1987-1988 school year and the amount Petitioner actually earned is $18,899.09.

    
    

61. Petitioner was contractually entitled to be compensated by Respondent for the 1988-1989 school year in the amount of $23,819.09. No evidence was presented that Petitioner earned any amount during the 1988-1989 school year over and above his retirement pay. 51/ The difference between the amount Petitioner was contractually entitled to earn for the 1988-1989 school year and the amount Petitioner actually earned is $23,819.09.

    
    

62. Petitioner was contractually entitled to be compensated by Respondent for the 1989-1990 school year in the amount of $23,819.09. No evidence was presented that Petitioner earned any amount during the 1988-1989 school year over and above his retirement pay. The difference between the amount Petitioner was contractually entitled to earn for the 1988-1989 school year and the amount Petitioner actually earned is $23,819.09.

    
    

63. The aggregate amount of salary Petitioner was contractually entitled to from Respondent for the 1987-1988, 1988-1989, and 1989-1990 school years was

    $71,457.27. The amount Petitioner actually earned over and above his retirement pay was $4,920.00. The difference between the amount Petitioner was

    contractually entitled to earn for the same period and the amount Petitioner actually earned was $66,537.27.

    
    

    Other Benefits

    
    

64. No evidence was presented concerning any benefits of Petitioner's employment with Respondent other than salary. Therefore, there is no evidence that Petitioner lost any such

    benefits including insurance benefits or seniority. 52/

    
    

    CONCLUSIONS OF LAW

    
    

65. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

66. Respondent objected to the admissibility of Petitioner's Exhibits 4-6, 11-14, and 19-22. Petitioner objected to the admissibility of Respondent's Exhibit 10. Ruling on the parties objections was reserved at the formal hearing for disposition in this Recommended Order. 53/

    
    

67. Petitioner's Exhibits 4-6 are copies of Petitioner's ERs performed by Colonel Rung for purposes of the AFJROTC program at Northeast High School. 54/ Petitioner's Exhibit 11 is a copy of Petitioner's rebuttal to the two unsatisfactory ERs rendered by Colonel Rung. Petitioner's Exhibit 12 is AFROTC Reg. 30-1. Petitioner's Exhibit 13 is the letter to Petitioner from Mr. Humphries dated June 23, 1987, advising Petitioner of the school board's decision in Petitioner's appeal hearing concerning the unsatisfactory ERs rendered by Colonel Rung for purposes of the AFJROTC program. Petitioner's Exhibit 14 is the letter from Mr. Huttenhoff to the Air Force clarifying Respondent's position with respect to the dispute between Petitioner and Colonel Rung. Petitioner's Exhibit 19 is the written response of Colonel Rung to the Professional Practices Services of the Florida Department of Education.

    
    

68. Respondent objected to the admissibility of Petitioner's Exhibits 4-6, 11-14, and 19 on the grounds that they were irrelevant, immaterial, and beyond the scope of this proceeding. Respondent was granted a standing objection to the admission of Air Force matters, including matters pertaining to evaluations and procedures, and tab any testimony regarding such matters.

    
    

69. Respondent's objection to the admissibility of Petitioner's Exhibits 4-6, 11-14, and 19 is overruled. Petitioner's Exhibits 4-6, 11-14, and 19 are relevant and material to the facts and circumstances surrounding Petitioner's alleged abandonment, suspension, or termination. They are also relevant and material to a determination of the credibility of witnesses and the evaluation of conflicting testimony admitted in evidence. Respondent's objection to the admissibility of any testimony pertaining to Air Force matters is overruled for the same reasons. 55/

    
    

70. In Castleman v. Office of the Comptroller Department of Banking and Finance, Division of Securities and Investor Protection, 538 So.2d 1365 (Fla. 1st DCA 1989), the court held that a hearing officer erred in excluding evidence of the facts and circumstances surrounding disciplinary orders entered in foreign jurisdictions against an applicant for a Florida license. The court based its ruling on the rationale that provisions in Chapter 517, Florida Statutes, which applied to the matters at issue in Castleman, did not direct that an application should be denied merely upon proof that disciplinary

    adjudications had occurred in other jurisdictions. Rather, the applicable provisions of Chapter 517 required the Department in Castleman to make a discretionary determination that the applicant was not of good repute and had demonstrated his unworthiness.

    
    

71. The provisions of Subsections 231.36(1)(a) and 231.36(6)(a), Florida Statutes, which are applicable to this proceeding, like the applicable provisions in Chapter 517 in Castleman, do not direct that a member of Respondent's instructional staff who is an AFJROTC instructor be suspended or terminated merely upon proof that he or she has been decertified by the Air Force. Rather, the applicable provisions of Subsections 231.36(1)(a) and 231.36(6)(a) require Respondent to make a discretionary determination, that an AFJROTC instructor is suspended or terminated for "just-cause" within the meaning of Subsection 231.36(1)(a).

    
    

72. The case of McGraw v. Department of State, Division of Licensing, 491 So.2d 1193 (Fla. 1st DCA 1986), which was cited by Respondent in support of its objection to the admissibility of evidence concerning the facts and circumstances surrounding Petitioner's decertification by the Air Force, is inapposite to this proceeding. In McGraw, the court excluded evidence of the facts and circumstances surrounding an applicant's state felony conviction in Florida on the express ground that the applicable statute provided a non- discretionary cause for denial of a license to the applicant. 56/ There is no statute applicable to this proceeding which authorizes the suspension or termination of an AFJROTC instructor merely for decertification by the Air Force.

    
    

73. Petitioner's Exhibits 20-22 are the depositions of Catherine Wiggins and Patricia Moss, both of whom testified at the formal hearing, and Heather Kent, who did not testify at the formal hearing. All were cadets in the AFJROTC program at Northeast High School at the time of the dispute between Petitioner and Colonel Rung. Pages 29-30 of Exhibit 20, Pages 45-46 of Exhibit 21, and Page 34 of Exhibit 22 were offered for the purpose of impeaching testimony by Colonel Rung that the cadets in the AFJROTC program at Northeast High School did not distrust him and did not dislike him.

1. Respondent objected to the admissibility of these exhibits on the basis of its standing objection and on the basis that counsel for Petitioner offered the impeachment exhibits during her cross examination of Colonel Rung before Respondent rested its case. Respondent also objected to the exhibits being identified as exhibits. Respondent asserted that the exhibits should have been identified as impeachment documents.

   
   

2. Respondent's objections to the admissibility of the relevant portions of Petitioner's Exhibits 20-22 are overruled. Disposition of Respondent's standing objection has already been made. While it is customary for rebuttal evidence to be presented after the Respondent rests its case, such a procedure is discretionary and not mandatory.

   
   

3. Respondent has the burden of proof in this proceeding. Respondent must demonstrate by a preponderance of the evidence that Petitioner either: (1) did not have a contractual right to employment; (2) abandoned his position as a member of Respondent's instructional staff; or (3) was dismissed for just cause in accordance with the applicable provisions of Subsections 231.36(1)(a) and 231.36(6)(a), Florida Statutes. Department of Corrections v. Dixon, 436 So.2d 320, 321 (Fla. 1st DCA 1983); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Florida Department of Health and

   Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974); State Department of Agriculture and Consumer Services v. Strickland, 262 So.2d 893 (Fla. 1st DCA 1972).

   
   

4. Petitioner had a contractual right to employment as a member of Respondent's instructional staff for the 1986-1987 school year pursuant to the annual, contract between Petitioner and Respondent. Petitioner had a contractual right to employment as a member of Respondent's instructional staff for the 1987-1988 school year pursuant to the Collective Bargaining Agreement Between the Broward Teachers Union and the School Board of Broward County, Florida (the "CBA"). Article 18, Paragraph O of the CBA provided in relevant part that if Petitioner did not receive written notice from Respondent on or before May 30, 1987, that Petitioner was not going to be re-employed for the 1987-1988 school year, then Petitioner must be re-employed for the 1987-1988 school year. Petitioner did ,not receive timely written notice that he would not be re-employed for the 1987-1988 school year. Accordingly, Petitioner's annual contract for the 1986-1987 school year and the CBA required Respondent to employ Petitioner for the 1987-1988 school year.

   
   

5. Petitioner did not receive written notice from Respondent that Petitioner had been separated from his position under conditions of abandonment. A career service employee who is absent without authorized leave of absence for three consecutive workdays is presumed to have abandon his position and to have resigned. Florida Adminstrative Code Rule 22A-7.010(2)(a). Such an employee may be separated from his position of employment due to a presumed abandonment if the employee is notified in writing of the employer's determination. Florida Administrative Code Rule 22A-7.010(2)(b). 57/ The requirement of written notice of a presumed abandonment provides the employee with a point of entry in the administrative process to contest the employer's presumption. Petitioner was presumed to have abandoned his position without written notice from Respondent. While Petitioner was not a career service employee, Petitioner had a contractual right to continued employment with Respondent. Respondent deprived Petitioner of his opportunity to contest Respondent's determination of abandondment at the time that Respondent made its determination.

   
   

6. Petitioner did not abandon his position as a member of Respondent's instructional staff. The presumption of abandonment is a rebuttable presumption. Tomlinson v. Department of Health and Rehabilitative Services, 558 So.2d 62 (Fla. 2nd DCA 1990). Petitioner presented competent and substantial evidence that was sufficient to rebut the presumption of abandonment.

   Petitioner refused to resign when requested to do so by Colonel Rung. After Petitioner was decertified by the Air Force, Petitioner sought reinstatement through every means available to him. Prior to the Air Force decertification, Petitioner was instructed by Respondent not to return to work until the Air Force matter was resolved. After Respondent received notice of the Air Force decertification, Respondent replaced Petitioner by hiring another employee without providing written notice to Petitioner that he had been separated under conditions of abandonment, suspended, or terminated.

   
   

7. Petitioner was suspended or terminated from his position as a member of Respondent's instructional staff. An abandonment that was deemed by the Respondent to have occurred, but which was neither intended nor reasonably to be expected by Petitioner, has the indicia of a termination for cause which invoked the notice and hearing requirements in Subsection 231.36(6)(a), Florida Statutes. Tomlinson, 558 So.2d at 65. Such a conclusion is especially compelling where the facts and circumstance surrounding the alleged abandonment, when considered as a whole, are consistent with Respondent's termination of

   Petitioner and Respondent failed to provide Petitioner with written notice of the Respondent's determination of abandonment.

   
   

8. The substance of the separate steps taken by Respondent, when considered as a whole, demonstrate that Respondent suspended or terminated Petitioner irrespective of the form in which each step was cast. Respondent knew prior to May, 1987, that it would be necessary to staff down the ROTC program for the 1987-1988 school year. Colonel Rung thought that his unsatisfactory ER of Petitioner would solve the problems of staffing down. Respondent did not give Petitioner written notice by May 30, 1987, that Petitioner would not be re-employed for the 1987-1988 school year. Colonel Rung made every attempt to get Petitioner to resign. When his attempts proved unsuccessful, Colonel Rung rendered an unsatisfactory ER of Petitioner. Mr. Schmelz knew of the procedures used by Colonel Rung and concurred in Colonel Rung's unsatisfactory ERs of Petitioner. Respondent failed to provide Petitioner with either written notice of the charges against him or a fair hearing within the meaning of applicable Florida law. Respondent prevented Petitioner from calling witnesses in his own behalf and prevented Petitioner from discussing the substance of the written materials Petitioner submitted to Respondent. Respondent voided the second, more favorable ER rendered by Colonel Rung and failed to give Petitioner written notice of its determination that Petitioner had abandoned his employment. Instead, Respondent replaced Petitioner with Sergeant Clark when Petitioner was decertified by the Air Force. Each and every step taken by Respondent was consistent with Respondent's erroneous assumption that Petitioner's decertification by the Air Force terminated Petitioner from his employment with Respondent without further action by the Respondent.

   
   

9. Petitioner was suspended or terminated by Respondent without a prior finding of "just cause" in violation of Subsections 231.36(1)(a) and 231.36(6)(a). Respondent never made a determination that Petitioner had committed acts or omissions that constituted just cause for Petitioner's suspension or termination. Subsection 231.36(6)(a) prohibits the suspension or termination of Petitioner for any reason that does not constitute just cause.

   
   

10. Petitioner was suspended or terminated by Petitioner without written notice of the charges against him and without a hearing conducted in accordance with Chapter 120, Florida Statues. Respondent suspended or terminated Petitioner in violation of Subsection 231.36(6)(a), Florida Statutes. Decertification by the Air Force did not deprive Petitioner of his statutory right to due process in the form of written notice of the charges against him and a formal hearing conducted in accordance with Chapter 120. Washington v. Kirksey, 811 F.2d 561 (11th Cir. 1987).

    
    

11. In Kirksey, an Army JROTC instructor at Eutaw High School in Greene County, Alabama was authorized under Alabama law to teach only JROTC. The JROTC instructor did not possess a state teaching certificate in any other subject. When the instructor was decertified by the Army, the Greene County Board of Education terminated the instructor's contract without notifying the instructor of the Board's intent to terminate the contract and without giving the instructor a fair hearing. The Eleventh Circuit Court of Appeals held that the instructor could not be terminated on the basis of the Army decertification without due process in the form of notice and a fair hearing.

    
    

12. The Petitioner in this proceeding, like the JROTC instructor in Kirksey, held a property interest in his continued employment. When Petitioner did not receive timely written notice from Respondent that he was not going to

    be re-employed for the 1987-1988 school year, Article 18, Paragraph O of the CBA contractually mandated that Respondent re-employ Petitioner for the 1987-1988 school year. The terms of the CBA were expressly incorporated into Petitioner's thirds annual contract for 1986-1987 school year. Petitioner was entitled to all of the contractual rights and privileges granted to other instructional personnel pursuant to Subsection 231.361(1), Florida Statutes. Petitioner's property interest in his continued employment could not be terminated without the requisite statutory due process in the form of written notice and a fair hearing conducted in accordance with Chapter 120.

    
    

13. The appeal hearing conducted by Respondent concerning Petitioner's unsatisfactory ER for purposes of the AFJROTC program at Northeast High School was not conducted in accordance with Chapter 120, Florida Statutes. Respondent could not deprive Petitioner of Petitioner's property interest in his continued employment by going through the mechanics of a hearing that was devoid of the requirements of Chapter 120. Cf. Kirksey, 811 F.2d at 564.

    
    

14. Petitioner is entitled to back pay for the 1987-1988, 1988-1989, and 1989-1990 school years. Subsection 231.36(6)(a), Florida Statutes, provides that a member of Respondent's instructional staff who has been suspended and the charges are not sustained shall be immediately reinstated with back pay. Similarly, a member of Respondent's instructional staff is entitled to back pay if such a member is terminated without being afforded his or her statutory right to due process in the form of written notice of tee charges against the instructor and a fair hearing conducted in accordance with Chapter 120. Brooks

    v. school Board of Brevard County, 419 So.2d 659, 661 (Fla. 5th DCA 1982). Petitioner is entitled to back pay up to the date of his reinstatement. The amount of such back pay is $66,537.27 less any set off for the period between the date of the formal hearing and the date of reinstatement.

    
    

15. The amount of back pay has been determined through the date of the entry of this Recommended Order. Respondent is entitled to present evidence of any set off attributable to Petitioner's earnings between the date of the formal hearing and the date Petitioner is reinstated pursuant to the terms of this Recommended Order. In the event the parties cannot reach agreement as to the amount of any much set off, jurisdiction is retained by the undersigned for the limited purpose of determining the amount of any set off.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

1. Respondent reinstate Petitioner as a member of Respondent's instructional staff with back pay through the date of reinstatement; and

   
   

2. Respondent assign Petitioner either to teach in an out-of-field area, within the meaning of Sections 231.095 and 231.096, Florida Statutes, that is not in a regular academic field of the kindergarten through grade 12 school program, as a teacher's aide, or in any other manner authorized by applicable law.

   
   

3. In the event Respondent determines that Petitioner does not qualify for assignment in accordance with the preceding paragraph, Respondent should suspends or terminate Petitioner in accordance with the requirements of Subsection 231.36(6)(a), Florida Statutes.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of August 1990.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1990.

ENDNOTES

1/ The issues discussed in the Order Denying Motions In Limine and For Attorney's Fees include the issues of whether: (1) Petitioner is qualified to teach Air Force Junior ROTC by virtue of holding a valid Florida Teaching Certificate for Junior ROTC; and (2) back pay, if any, should be calculated to the date of decertification by the Air Force ore to the dale Petitioner is or was properly dismissed.

2/ All statutory references are to Florida Statutes (1987) unless otherwise specifically provided.

3/ Respondent was statutorily authorized, for example, to assign Petitioner to an area other than "JR ROTC" as a teacher teaching out-of-field within the meaning of Sec. 231.096, Fla. Stat. Sec. 231.15 expressly authorized Respondent to employ noncertified personnel to provide instructional services in the individuals' fields of specialty or to assist instructional staff as teacher aides. Petitioner had substantial experience in classroom instruction, mechanics, and real estate matters. Petitioner testified that he had additional experience but evidence of the specific nature of that experience was not presented at the formal hearing. Alternatively, Petitioner could have been assigned as a teacher aide. While Petitioner was employed by Respondent either as a teacher out-of-field or as a teacher aide, Petitioner could have sought certification as an adjunct instructor within the meaning of Sec. 231.51, Fla.

Stat. See infra text at para. 13, Findings of Fact, and R at 48-51.

4/ Petitioner's Exhibit 3, Deposition of Kenneth Daly, PsyD, Director of Operations and Training, Air Force ROTC, July 6, 1989, at 42-43.

5/ See infra text at para. 39, Findings of Fact.

6/ Subsec. 231.36(1)(a) defines "just cause" to include misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. Action taken by Respondent to decertify the Teaching Certificate of an AFJROTC instructor must also comply with Florida law applicable to decertification by the Department of Education.

7/ See Subsecs. 231.36(1), 231.36(4)a. and b., and 231.36(6)(a), Fla. Stat.

8/ The criteria are set forth in the Air Force Unit Rating Systems Summary Booklet.

9/ Respondent's official evaluations of Petitioner are Respondent's evaluations rating Petitioner's performance as satisfactory. See-infra text at para. 32, Findings of Fact.

10/ Colonel Rung's remarks stated that Petitioner failed to follow the Colonel's directives regarding: (1) testing and evaluation of students in leadership and drill classes; (2) security procedures and cleanliness in the supply room; (3) issue and retrieval of uniforms; (4) the failure to require female cadets to wear hats during a public, outdoor drill exhibition; (5) leaving school grounds during Petitioner's planning periods; (6) allowing cadets to hang around, drill classes when they were scheduled to be in another class;

(7) spending too much time in the teacher's lounge; (8) smoking in the presence of students in the AFJROTC supply room; (9) safety procedures involving drill inspections on hard surfaces during hot weather; (10) completing paperwork required by the school; (11) failure to cadet personnel records; and (12) refusal to update the Air Force regulation manuals.

11/ See TR at 486-487.

12/ The official evaluations of record for Petitioner are Respondent's evaluations rating Petitioner's performance as satisfactory. See infra text at para. 32, Findings of Fact.

13/ Officer rank for cadets is temporary and may be taken away at the discretion of the ASI

14/ Colonel Rung pointed out during his testimony that the decision not to renew the rank of these 10-15 cadets was not made by him. Instead, it was a decision made by a "board" comprised of Colonel Rung, Sergeant Clark (a recently hired AFJROTC instructor) and Colonel Tschetter. Colonel Tschetter was a "member" of the "board" but did not actively participate in the meetings in which the decision was made.

15/ No determination is made whether the appeal hearing complied with Air Force procedure. That issue is beyond the scope of this proceeding.

16/ Colonel Rung was allowed approximately 45 minutes. Mr. Humphries saw Colonel Rung and before the appeal hearing began. After the appeal hearing, Mr. Humphries saw Colonel Rung again.

17/ Mr. Humphries advised Petitioner at the appeal hearing that Mr. Humphries had reviewed the written materials Petitioner had submitted, and that Petitioner did not need to talk about the information in the written materials. Mr.

Humphries failed to call any of the witnesses listed by Petitioner as individuals who could verify the factual allegations in the rebuttal of Petitioner's unsaticfactory ER. See TR at 554-564 and 582-584.

18/ In his second unsatisfactory ER of Petitioner, Colonel Rung upgraded Petitioner's "poor" rating in "leadership education" and "planning and evaluation" to "average." Both the Air Force Appeal Board and Colonel Rung evaluated Petitioner's performance in "planning and evaluation" as "average" rather than "poor." However, Mr. Humphries and Mr. Huttenhoff voided the second unsatisfactory ER rendered by Colonel Rung.

19/ The decertification was effective August 28, 1987. 20/ See supra text at para 27, Findings of Facts.

21/ The Collective Bargaining Agreement, - Between the Broward Teachers Union and The School Board of Broward County, Florida August 16, 1986 to August 15, 1989.

22/ Compare TR at 657-661 with TR at 688-691.

23/ See infra text at paras. 49-53, Findings of Fact.

24/ Compare Fla. Admin. Code (pertaining to written notice Rule 22A-7010(2)(b) required for career service employees in constructive abandonment cases).

25/ See TR at 485-486 and 510-518.

26/ A preference card is a form post card submitted annually to the Air Force in which the person responding states whether he or she wishes to be transferred, go overseas, etc. Petitioner checked the box indicating he wished to remain in his present position. See TR at 579 and 580.

27/ See TR at 599.

28/ See TR at 490-491.

29/ The means were misdirected because they would not have achieved the desired result even if successful.

30/ See TR at 609-613.

31/ The letter of decertification from the Air Force was dated August 20, 1987. The decertification was effective August 28, 1987. Assuming three days were required for mailing, Mr. Schmelz received notice of the Air Force certification on or about August 23, 1987. Sometime after August 23, 1987, but before the beginning of the 1987-1988 school year, Mr. Schmelz conducted his lone interview and signed Sergeant Clark to a contract. The beginning of the term of Petitioner's annual contract for the 1986-1987 school year was August 27, 1986. Assuming that the 1987-1988 school year began on or about August 27, 1987, Mr.

Schmelz had approximately four days to complete the formalities of Sergeant Clark's employment at Northeast High School. Subsec. 231.36(1)(a) provides in relevant part that each person employed as a member of Respondent's instructional staff shall receive a written contract. Presumably, Respondent complied with that statutory requirement when it hired Sergeant Clark.

32/ See infra text at para. 54, Findings of Fact.

33/ Tomlinson v. Department of Health, and Rehabilitative Services, 558 So.2d 62, 65 (Fla. 2nd DCA 1990).

34/ Mr. Schmelz recalled that Petitioner asked Mr. Schmelz what Petitioner should do about the fall when school starts again. Mr. Schmelz recalled that his response was that hopefully the dispute between Petitioner and Colonel Rung would be settled by then. See TR at 477-478. Whether Mr. Schmelz instructed Petitioner not to return to work until the Air Force matter was resolved or answered Petitioner's question by stating that hopefully the Air Force matter

would be resolved before school started, Mr. Schmelz believed the disposition of the matter by the Air Force would be dispositive of Petitioner's inquiry as to whether Petitioner should return for the 1987-1988 school year. That belief on the part of Mr. Schmelz was consistent with Respondent's assumption that Petitioner's decertification by the Air Force terminated Petitioner from employment with Respondent without further action by Respondent.

35/ Mr. Schmelz testified that the Air Force contacted Mr. Schmelz regarding "replacement" action. Mr. Schmelz knew that the Air Force would assist him in "filling that position" for the 1987-1988 school year. Mr. Schmelz availed himself of such assistance from the Air Force. Mr. Schmelz had one interview and hired Sergeant Clark to "fill that position." See TR at 483-485. See supra text at paras. 43 and 44, Findings of Fact.

36/ See supra text at para. 27, Findings of Fact. 37/ See Petitioner's Exhibit 6.

38/ When enrollment dropped below 150 students, AFJROTC instructors had to be staffed down from three instructors. See TR at 849.

39/ See TR at 850.

40/ Id.

41/ See Petitioner's Exhibit 6.

42/ Cf. Tomlinson, 558 So.2d at 65 (holding that a constructive abandonment which is deemed by a public body to have occurred, but which is neither reasonably intended nor reasonably expected has the "indicia" of a termination). Similarly, the economic reality or substance of a business transaction has been determined for federal tax purposes by considering the effect of all of the steps in a transaction as a whole rather than the separate effect of each step in the transaction. Use of the so-called "step transaction doctrine" (or doctrine of "substance over form") has a long standing acceptance as a means of determining the substance of a transaction comprised of several separate steps.

43/ Subsec. 231.361(2) actually provides in relevant part that Petitioner could not be assigned to teach in a "regular academic field of the kindergarten through grade 12 school program." (emphasis added). Subsec. 231.361(2) did not prevent Petitioner from being assigned to teach non-academic courses in the K-12 program even though such non-academic courses were outside of Petitioner's field within the meaning of Secs. 231.095, 231.096, and 231.15.

44/ See TR at 67a.

45/ Mr. Humphries testified at the formal hearing that AFJROTC instructors were certified by the Air Force; otherwise they wouldn't have gotten a contract with the school district. See TR at 350 and 360. His testimony was in response to a question referring to events occurring in 1987 when Mr. Humphries was Respondent's North Area Secondary Director.

46/ See TR at 575-577.

47/ See TR at 581 and 626. 48/ See TR at 596-597.

49/ Petitioner testified that he made a total of $13,000.00 in 1988 including his retirement pay of $10,000.00. The additional amount of $2,040.00 was calculated by reducing the $3,000.00 earned in excess of Petitioner's retirement pay by $960.00 which is the portion of the $2,880.00 attributed to 1988. See TR at 626.

50/ While Petitioner testified that AFJROTC instructors received annual increases in salary, no evidence of the amount of such increases was presented.

51/ Both parties were on notice that back pay was at issue in this proceeding. The Petition for Administrative Hearing and the Amended Petition for Administrative Hearing both requested reinstatement and back pay. The Order Denying Motions in Limine and for Attorney's Fees acknowledged that the matter of back pay was at issue in this proceeding. The Notice of Hearing stated that the issues for determination that the formal hearing were those set forth in the "Administrative Complaint." No objection was made as to adequacy of the Notice of Hearing.

52/ Benefits other than salary were at issue in this proceeding as a subset of reinstatement.

53/ Petitioner's objection to Respondent's Exhibit 10 is overruled.

54/ Exhibit 4 is the ER for 1986. Exhibit 5 is the unsatisfactory ER dated May 1, 1987, and Exhibit 6 is the unsatisfactory ER dated May 14, 1987.

55/ The purpose of admitting such evidence is not to conduct a de novo hearing of the Air Force decertification action. Such a purpose is clearly beyond the scope of this proceeding. Instead, the purpose of admitting such evidence is to assist the trier of fact in determining the facts and circumstances surrounding the ultimate issues in this proceeding, evaluating the credibility of witnesses, and evaluating any conflict in testimony among witnesses.

56/ Disciplinary action against the license of a private investigator was expressly authorized in Sec. 493.319(1) where the licensee had been found guilty of the commission of a crime.

57/ The written notice from the employer must be either hand delivered to the employee with a certificate of service or sent by certified mail to the employee's last known address. The written notice must inform the employee of his or her rights to petition for review of the employer's determination that the employee has abandon his position. Fla. Admin. Code Rule 22A-7.010(2)(b).

APPENDIX

Petitioner submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No reference is made to unnumbered paragraphs.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Accepted in finding 34

2. Accepted in finding 33

3. Rejected as immaterial

4. Accepted in finding 33

101-104 Rejected as immaterial

1. Accepts in finding 35

2. Accepted in finding 43, 50

3. Accepted in part in findings 43, 50

4. Accepted in part in finding 1

109-111 Accepted in finding 42

112, 113 Accepted in finding 53,54

114 Accepted in findings 52-54

Respondent submitted proposed findings of fact. It has been noted below which proposed findings of tract have been generally accepted and the paragraph number(1) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No reference is made to unnumbered paragraphs.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph, Number in Recommended Order of Fact Number of Acceptance or Reason foil Rejection

in findings 43-54

1. Accepted in part and rejected in part in findings 43,54 51

2. Rejected for the reasons stated in findings 43-54

COPIES FURNISHED:

Virgil L. Morgan Superintendent of Schools

The School Board of Broward County 1320 S.W. Fourth Street

Fort Lauderdale, Florida

Hon. Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Leslie Holland, Attorney Staff Attorney, FEA/United

208 West Pensacola Street Tallahassee, Florida 32399-1700

Edward J. Marko, Esquire Victoria Park Centre, Suite 201 1401 East Broward Boulevard Post Office Box 4369

Fort Lauderdale, Florida 33338

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE SCHOOL BOARD

OF BROWARD COUNTY, FLORIDA DOAH CASE NO. 88-6352

JOHN EVANS,

Petitioner,

vs.

THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA,

Respondent.

/

FINAL ORDER

THIS CAUSE coming on to be heard before THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA at its regular meeting on December 18, 1990, upon Hearing Officer Daniel Manry's Recommended Order dated August 6, 1990 from the Division of Administrative Hearings, and upon the exceptions filed by THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, and the Motion for Enlargement of Back Pay Award and for Benefits, and THE SCHOOL BOARD hearing oral argument of counsel and being otherwise fully advised of the premises,

IT IS THEREUPON ORDERED by THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA

that:

1. The Exceptions which were submitted by the Respondent, THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, without objection from the Petitioner, JOHN EVANS, are adopted in their entirety.

2. THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA accepts the stipulation of counsel that the Petitioner, JOHN EVANS, earned the sum of 8,670.00 subsequent to the formal hearing conducted by the Hearing Officer and through December 18, 1990.

   
   

3. Counsel for the parties have represented that the Petitioner, JOHN EVANS' State of Florida Department of Education Teacher's Certificate expired as of June 30, 1990.

   
   

4. The Hearing Officer's Findings of Fact are adopted as modified by the Exceptions approved by THE SCHOOL BOARD.

   
   

5. The Hearing Officer's Conclusions of Law are adopted as amended by the Exceptions approved by THE SCHOOL BOARD.

   
   

6. The Petitioner, JOHN EVANS, is entitled to the sum of 66,537.27 as and for back pay calculated through June 30, 1990 at which time Petitioner's State of Florida Department of Education Teacher's Certificate expired. This amount is to be reduced by the sum of 6,522.65 as moneys earned by the petitioner subsequent to the formal hearing and through June 30, 1990. Accordingly, the Petitioner, JOHN EVANS, is hereby awarded the sum of 60,014.62.

   
   

7. The Petitioner, JOHN EVANS, is entitled to employment in the areas of alternate education of dropout prevention as a member of the instructional staff of THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA at such time as Petitioner presents to THE SCHOOL BOARD a valid and current State of Florida Department off Education Teacher's Certificate issued to Petitioner.

   
   

8. The Hearing Officer's Recommendation is adopted as amended by the Exceptions approved by THE SCHOOL BAORD as amended by this Final Order.

   
   

9. The Motion for Enlargement of Back Pay Award and for Benefits was considered by THE SCHOOL BOARD as Exceptions to the Findings of Fact of the Recommended Order. The Exception as to back pay and benefits is rejected in that there is substantial, competent evidence in the record to support the Hearing Officer's Findings of Fact as to back pay and benefits.

DONE AND ORDERED in Fort Lauderdale, Broward County, Florida this 18th day of December, 1990.

By ROBERT D. PARKS, Chairperson The School Board of Broward County, Florida

Copies furnished:

Leslie Holland, Esquire Edward J. Marko, Esquire

Staff Attorney, FEA/United 1401 East Broward Boulevard-#201

208 West Pensacola Street P.O. Box 4369

Tallahassee, Florida 32399-1700 Fort Lauderdale, Florida 33338

Daniel Manry, Hearing Officer Virgil L. Morgan, Superintendent Division of Admin. Hearings The School Board of Broward

The DeSoto Building County, Florida

1230 Apalachee Parkway 1320 Southwest Fourth Street Tallahassee, Florida 32399-1550 Fort Lauderdale, Florida 33312

The Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

APPEAL OF FINAL ORDER

THIS ORDER may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), Florida Statutes, and Florida Rules of Appellate Procedure 9.110(b) and (c), within thirty (30) days of the date of the entry of this ORDER.

Filed in Official School Board Records this 28 day of January, 1991.

Supervisor, Official School Board Records

Docket for Case No: 88-006352

Orders for Case No: 88-006352